Duty to Repair and Maintain (22:XIV): Difference between revisions

Revision as of 19:03, 22 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 24, 2023.

A. The Duty to Repair and Maintain

As a general principle, the SPA provides that a strata corporation is responsible for the repair and maintenance of the common property, while the strata lot owner is responsible for their own lot. This principle is subject to more detailed provisions of the SPA, the SPR, and bylaws adopted by a strata corporation.

1. Developing a Plan for Repair and Maintenance

a) Information from the Owner Developer under the Strata Property Act

The SPA recognizes the owner developer as an initial source of information with respect to repairs and maintenance of strata developments. The owner developer is required by s. 20(2)(a) to deliver the following documents at the first annual general meeting:

All plans that were required to obtain a building permit and any amendments to the building permit plans that were filed with the issuers of the building permit;
Any document in the owner developer’s possession that indicates the “as built” location of pipes, wires, ducts, cables, chutes, and other facilities for the passage or provision of services, if the owner developer has reason to believe that these facilities are not located in the places shown on the building permit plans or any amendments to the building permit plans;
The names and addresses of all contractors, subcontractors, and persons who supplied labour or materials to the project as required by the SPR;
warranties, manuals, schematic drawings, operating instructions, service guides, manufacturers’ documentation, and other similar records regarding the construction, installation, operation, maintenance, repair, and servicing of any common property or common assets.

b) Provision of Manual and Warranty under the Homeowner Protection Act

In addition, Part 8 of the Homeowner Protection Act, SBC 1998, c 31 requires anyone offering a new home for sale to provide a home warranty with certain minimum coverage, including:

Defects in materials and labour for a period of at least two years after the date on which the warranty begins;
Defects in the building envelope, including defects resulting in water penetration, for a period of at least five years after the date on which the warranty begins;
Structural defects for a period of at least 10 years after the date on which the warranty begins.

2. Depreciation Reports

To assist a strata corporation in undertaking its repair and maintenance obligations, s. 94 of the SPA requires a strata corporation to obtain a depreciation report to estimate the service life and anticipated maintenance, repair, and replacement costs for specified components of the strata corporation. This helps the strata corporation to better plan for the future and fund its contingency reserve fund accordingly. The strata corporation can only temporarily exempt itself from the requirement to obtain a depreciation report if, within the one-year period prior to the date on which the report is required to be obtained, the owners adopt a ¾ vote resolution at an annual or special general meeting (SPA, s. 94(3)).

The requirements for a depreciation report are set out in section 94 of the SPA, including:

The report must be obtained from a “qualified person”, a term defined in s. 6.2(6) of the SPR as “any person who has the knowledge and expertise to understand the individual components, scope and complexity of the strata corporation’s common property, common assets and those parts of a strata lot or limited common property, or both, that the strata corporation is responsible to maintain or repair under the SPA, the strata corporation’s bylaws or an agreement with an owner and to prepare a depreciation report that complies with [s. 6.2(1) to (4) of the SPR]” (s. 94(2)).
A strata corporation must obtain a depreciation report in accordance with the following timelines (SPA, s. 94(2), SPR, s. 6.2(7)):

a) when a strata corporation was established on or before December 14, 2011, the first depreciation report must have been obtained no later than December 14, 2013, and

b) when a strata corporation has already obtained at least one depreciation report, the next depreciation report must be obtained no later than three years after the date of the last report.

3. A depreciation report is required to include all of the following (SPR, s. 6.2(1)):

a) a physical inventory and evaluation that complies with s. 6.2(2);

b) a summary of repairs and maintenance work for common expenses respecting the items listed in s. 6.2(2)(b) that usually occur less often than once a year or do not usually occur;

c) a financial forecasting section that complies with s. 6.2(3);

d) the name of the person from whom the depreciation report was obtained and a description of that person’s qualifications, errors and omissions insurance coverage, if any, and relationship with the strata corporation;

e) any other information or analysis that the strata corporation or the person providing the depreciation report considers appropriate.

B. Repair and Maintenance of Common Property and Common Assets

1. Strata Property and Standard Bylaws

a) Essential and Fundamental Obligation of the Strata Corporation

The BC Supreme Court has recognized the duty to repair and maintain common property as an essential and fundamental obligation of the strata corporation (Royal Bank of Canada v Holden, 1996 CanLII 3440 (BCSC)). These repairs may be purely aesthetic in nature (Kornylo v The Owners, Strata Plan VR 2628, 2019 BCCRT 1215). This duty applies to common assets as well (The Owners, Strata Plan KAS 2827 v Couchman, 2018 BCCRT186).

A strata corporation may delegate to a strata lot owner its responsibility for maintenance and repair of limited common property that the owner has a right to use (s 72(2)(a)) as well as common property other than limited common property subject to the SPR (s 72(2)(b)). However, no regulations have been adopted permitting a corporation to do the latter, so the strata corporation cannot purport to make an owner responsible for the repair and maintenance of common property through the bylaws. This makes the distinction between limited common property and common property important.

However, the adjudicator in Tagle v The Owners, Strata Plan EPS 2604, 2022 BCCRT 161 stated that there was nothing in the SPA that prevented the strata corporation from permitting owners to assume responsibility for common property maintenance and repair, and it will have acted reasonably in relying on those repairs (Wu v 238998 Investments Ltd., 2021 BCCRT 205).

The obligation on a strata corporation to repair and maintain will be assessed on a standard of reasonableness, that is, to do all that can reasonably be done. The court in The Owners, Strata Plan LMS 3539 v Ng, 2016 BCSC 2462 held that a strata corporation can be liable in the tort of private nuisance to a strata lot owner for losses arising out of the failure of a common property pipe resulting in significant damage to the owner’s strata lot.

b) Bare Land Strata Plans

In a bare land strata plan, the boundaries of a strata lot are determined by reference to survey markers, and not the midpoints of walls, ceilings, and floors, as is typically the case in a conventional strata plan. The same “reasonableness” standard of repair in the context of a “conventional” strata plan applies to bare land strata plans, per the CRT’s application in Stubbert v The Owners, Strata Plan KAS 2750, 2021 BCCRT 564.

However, as the exterior walls, roofs, windows, and doors of the building on a bare land strata lot form part of the strata lot, the strata corporation is not responsible for repair and maintenance of a strata lot’s exterior unless that obligation is assumed by operation of a properly approved bylaw.

C. Repair and Maintenance of Limited Common Property

The SPA allows a strata corporation to designate areas of common property as limited common property, intended for the exclusive use of one or more strata lots.

1. Strata Property Act and Standard Bylaws

In general, the SPA contemplates that the strata corporation will be responsible for the repair and maintenance of limited common property. However, unlike in the case of common property, a strata corporation is permitted by bylaw to make an owner responsible for the repair and maintenance of limited common property that an owner has the right to use (s. 72(2)(a)).

A strata corporation is responsible for the repair and maintenance of limited common property, again to a reasonableness standard, that occurs less frequently than once per year, as well as for the repair and maintenance of the following areas of limited common property no matter how often the repair or maintenance ordinarily occurs:

The structure of the building;
The exterior of the building;
Chimneys, stairs, balconies, and other things attached to the exterior of the building;
Doors, windows, and skylights on the exterior of the building or that front on the common property;
Fences, railings, and other similar structures that enclose patios, balconies, or fences.

2. Repair and Maintenance Expenses

The funds necessary for the repair and maintenance of the common property and common assets form part of the “common expenses” of a strata corporation (s. 1(1)). See section 7 (Strata Corporation Finances) for a detailed breakdown of how strata corporation can raise funds to fulfill their duties, including repair and maintenance expenses, through the:

Operating Fund;
Contingency Reserve Fund; and/or
Special Levies.

a) Sections and Types

The general principle that all owners must contribute to the costs and repair and maintenance in accordance with unit entitlement has exceptions where sections or types of strata lots have been created by the operation of bylaws.

Sections

Section 191 permits the creation of sections to represent the different interests of:

Residential strata lot owners and non-residential strata lot owners;
Non-residential strata lot owners, if they use their strata lots for significantly different purposes (for example, strata lots used as retail stores, as distinguished from strata lots used for parking stalls);
Residential strata lot owners where there are different types of strata lots.

Although the SPA provides no guidance on what constitute “significantly different purposes” for non-residential strata lots, s. 11.1 of the SPR sets out the following “different types” of residential strata lots recognized by the SPA for the purpose of creating sections:

Apartment-style strata lots;
Townhouse-style strata lots;
Detached houses.

Part 11 of the SPA does not contain an express requirement that a section repair and maintain any particular property. Section 194(2)(a) does provide that the section has the same powers and duties of the strata corporation to establish its own operating fund and contingency reserve fund for common expenses of the section, so it may be inferred that a section has the obligation to repair and maintain common property designated for all strata lots within the section.

Types

Unlike a strata corporation and section, the recognition of “types” within a strata corporation does not give rise to separate legal entities. Instead, the adoption of a bylaw that acknowledges the existence of different types of strata lots empowers a strata corporation (or a section) to allocate operating fund expenses relating solely to a particular type of strata lot to only the strata lots of that type.

In Fraser v Strata Plan VR 1411, 2006 BCSC 1316, the court rejected an attempt to create “types” for the sole purpose of allocating responsibility for undertaking and paying for the cost of repair and maintenance of common property. In addition, s. 11.2(3) of the SPR provides that contributions to the contingency reserve fund and to a special levy, even if raised to pay for the repair and maintenance of types within a section, must be levied against all strata lots in the section, regardless of type.

b) Windows, Doors, and Skylights

The SPA’s definition of “common property” does not expressly deal with windows, doors, and skylights, making it difficult to decide how to repair and maintain these. This decision is very fact-dependant based on where a window, door, or skylight is installed, and it will be argued in different cases whether the window, door, and skylight is completely within a strata lot, on the boundary between the strata lot or completely within the common property.

Standard Bylaw 8(c)(ii)(D) of the SPA makes the strata corporation responsible for all aspects of the maintenance of windows, doors, and skylights that are on the exterior of a building or that face common property. Even if the exterior-facing windows, doors, and skylights form part of the strata lot, the strata corporation would be responsible for the repair and maintenance of these areas (The Owners of Strata Plan NWS 254 v Hall, 2016 BCSC 2363).

c) Alterations to Common Property or Common Assets Made by Strata Lot Owners

Standard Bylaw 6 requires a strata lot owner to obtain the permission of the strata corporation before undertaking any alteration to common property, including limited common property, or to common assets. A strata corporation is permitted to require an owner to assume in writing responsibility for any expenses relating to the alteration.

In addition, to further enforce the obligations being assumed with respect to the alteration, consideration should be given to amending Standard Bylaw 5(2)) to provide that owners are responsible for undertaking and paying for the cost of maintaining and repairing any alterations made to common property by the owner or a prior owner of the strata lot.

@@ Line 35: / Line 35: @@
 :::a) when a strata corporation was established on or before December 14, 2011, the first depreciation report must have been obtained no later than December 14, 2013, and
 :::b) when a strata corporation has already obtained at least one depreciation report, the next depreciation report must be obtained no later than three years after the date of the last report.
-# A depreciation report is required to include all of the following (SPR, s. 6.2(1)):
+:3. A depreciation report is required to include all of the following (SPR, s. 6.2(1)):
 :::a) a physical inventory and evaluation that complies with s. 6.2(2);
 :::b) a summary of repairs and maintenance work for common expenses respecting the items listed in s. 6.2(2)(b) that usually occur less often than once a year or do not usually occur;